Report

Introduction

Between April 2021 and February 2022, with funding and support from the U.S. Department of Justice’s Office of Justice Programs, Bureau of Justice Assistance (BJA), The Council of State Governments (CSG) Justice Center conducted an analysis of racial equity across Montana’s criminal justice system, in partnership with Montana judicial branch stakeholders.

This project builds on previous work by CSG Justice Center staff in Montana as part of the Justice Reinvestment Initiative (JRI), which documented initial evidence of racial disparities between White and American Indian people in arrests and corrections populations.¹² However, because JRI was not focused exclusively on racial equity issues, more in-depth analysis was not possible at that time.

In light of these previous findings, this new analysis aimed to investigate patterns of racial disparity across the crim­inal justice system, to the extent that they exist, and pro­vide insight into the drivers behind them in order to offer actionable recommendations to address them. Additionally, this work sought to closely document any data gaps or data quality issues so that the judicial branch can improve any racial equity-related data collection challenges within the court system. Specifically, CSG Justice Center staff’s racial equity analysis includes the following key compo­nents: (a) an in-depth analysis of sentencing and super­vision revocation decisions across racial groups and (b) a high-level analysis of existing data in the court sys­tems to identify strategies to improve future data collec­tion and monitoring related to racial disparity. This report focuses on results from component (a); an accompany­ing report, Availability of Defendants’ Race and Ethnicity Information in Montana’s Case Management System, details component (b), including the results of an assessment of court data quality.

This report describes the results of analysis of criminal jus­tice system data for the five-year period between January 2016 and December 2020 and is organized into the fol­lowing sections:

• A background section that reviews findings from CSG Justice Center staff’s earlier analysis of racial disparity in Montana’s criminal justice system and provides con­text from the broader research literature on racial dis­parity in the criminal justice system in the U.S.
• An analytic approach section, which provides an over­view of the data sources and quantitative methods used in this analysis
• A summary of results addressing the extent to which American Indian-White racial disparities exist in sentenc­ing and supervision revocation decisions
• Data-driven policy recommendations that outline a path forward to advance racial equity in the state

Background

Throughout the United States, Black, Indigenous, and People of Color (BIPOC) groups face incarceration rates that are often much higher than White populations¹⁴ despite progress in reducing such disparities for Black and Hispanic groups in recent decades.¹⁵

A large body of research documents the role of historical and ongoing forms of systemic racism in creating and per­petuating these racial disparities.¹⁶ Although research on racial disparities in criminal justice has focused on Black and Hispanic people, a limited body of work indicates that American Indian people face disparities similar to those of other BIPOC groups. For example, some studies have shown that American Indian people receive harsher sen­tences than similarly situated White people.¹⁷ Several stud­ies suggest that American Indian people face disparities in supervision revocations as well.¹⁸

In Montana, American Indian people comprised 6.2 percent of the total population in 2020, the fifth largest proportion of any state.¹⁹ Previous analysis conducted by CSG Justice Center staff has shown that American Indian people are disproportionately represented in Montana’s criminal jus­tice system. Specifically, as part of JRI work conducted in 2015 and 2016, CSG Justice Center staff’s assessment of Fiscal Year (FY) 2015 arrest and corrections populations data highlighted the following key findings:²⁰

• Despite comprising approximately 7 percent of the state’s total population in 2015, American Indian peo­ple accounted for 19 percent of total arrests. This dis­parity in arrests was driven by failures to appear (FTA) and supervision violations.
• American Indian people were also disproportionately represented in the corrections system, where they accounted for 17 percent of the total correctional facil­ity population.

CSG Justice Center staff’s new racial analysis reexamined key criminal justice statistics and identified similar dispar­ities. As depicted in Figure 1 below, in 2019, American Indian people were overrepresented in community super­vision and prison populations, and in arrests, relative to their representation in the general state population.

Figure 1: White and American Indian People as a Percentage of Total Adult and Justice-Involved Populations

With this background in mind, CSG Justice Center staff’s current analysis delves further into criminal justice data to provide insight into key decision-making points and factors that are potentially associated with racial disparities.

Analytic Approach

The research literature on racial inequity uses a variety of terms to describe how to measure differences between racial groups.²² For the purposes of this analysis, CSG Justice Center staff were careful to distinguish between disparities in outcomes versus disparities in treatment. Disparities in outcomes can be observed by examining differences in group-level rates; for example, one might compare the incarceration rate of one group to another. While such disparities are important to document, they do not provide much insight into factors that may or may not be contributing to the observed disparity.

Another approach is to analyze disparities in treatment— for instance, comparing judicial sentencing decisions or supervision revocation decisions. This approach requires comparisons to be made between similarly situated, other­wise indistinguishable people from different racial groups. Analysis of disparities in treatment can provide more actionable information that criminal justice system actors can use to craft better policy and practice by identifying issues at specific decision-making points.

With these distinctions in mind, this analysis focuses stra­tegically on estimating racial disparities in treatment to empower Montana criminal justice system stakeholders with actionable information. Specifically, this project inves­tigates the extent to which racial disparities exist in incar­ceration sentencing decisions; prison length of stay; and revocations of probation, conditional release, and parole.

Importantly, due to data and sample size limitations, this analysis pertains exclusively to American Indian and White people who have been convicted of a felony offense. There are two major reasons for this. First, there was insuffi­cient race and ethnicity data in the court data system. On average, across all courts, defendants’ race and ethnic­ity information was missing in 32 percent of cases filed between 2015 and 2020. For details, see the accompa­nying report Availability of Defendants’ Race and Ethnicity Information in Montana’s Case Management System. Due to these data limitations, CSG Justice Center staff were unable to examine the pool of people who were charged with a felony but not convicted or people who were charged with misdemeanors. Instead, the analysis of sentencing decisions was conducted using Montana Department of Corrections (MT DOC) data, which track people from the point of a felony conviction.

Second, the statistical methods used in this analysis require a minimum sample size, and among the popula­tion of people convicted of a felony offense, only American Indian and White people met these requirements. Other important racial and ethnic disparities (e.g., impacting Black or Hispanic populations) may very well exist across Montana’s criminal justice system, and as more data become available within the Montana courts, future anal­ysis should investigate those as well.

CSG Justice Center staff used quantitative research meth­ods to conduct an analysis of racial equity and develop data-driven policy recommendations to address observed racial disparities in Montana. Data for the in-depth analy­sis detailed in this report were obtained from the MT DOC, which manages data on people in state prison, alternative secure facilities (such as treatment centers), and on com­munity supervision. Additional data on Montana’s general population were obtained from the U.S. Census Bureau. Datasets were cleaned and analyzed using standard sta­tistical methods, including relative rate index calculations and regression analysis. Through these activities, this work aimed to address the following key analysis questions:

1. Are there racial disparities in (a) sentences to incar­ceration or (b) incarceration sentence length, across offense types, after accounting for key case and defen­dant characteristics?
2. Are there racial disparities in incarceration length of stay, across offense types, after accounting for key case and defendant characteristics?
3. Are there racial disparities in decisions to revoke (a) probation/conditional release or (b) parole, across offense types, after accounting for key case and defen­dant characteristics?

Figure 2. Analysis Questions

Quantitative Data Sources and Measures

MT DOC: The main dataset analyzed for this project was obtained via a data use agreement between the CSG Justice Center and MT DOC. MT DOC staff shared data from January 1, 2016, through December 31, 2020, on three groups of people: (1) people with an original sen­tence for a felony conviction with a pronouncement (i.e., sentencing) date during the study period (probation vio­lations were excluded); (2) people in custody of MT DOC, including people incarcerated in state prison as well as people in alternative secure facilities, such as treatment centers and prerelease centers; and (3) people on commu­nity supervision, including probation, conditional release, and parole. After data were cleaned and eligible cases were identified, CSG Justice Center staff constructed a series of analytic samples (for details, including a sum­mary of the entire analytic approach, see Table 1).

Importantly, for felony convictions, Montana’s sentenc­ing judges have a special sentencing option called “DOC commit.” A sentence to DOC commit means that MT DOC staff will complete an assessment of the sentenced per­son’s risks and needs and then make a placement deci­sion. This placement decision by MT DOC can result in incarceration or community supervision. In cases where MT DOC places a person on community supervision, the supervision is termed conditional release. In practice, conditional release is like probation—the staff, risk and needs assessment tools, and policies regarding sanc­tions and incentives are the same.²³ However, conditional release is distinct from probation in one important way: decisions to revoke are made by MT DOC for people in the conditional release group, whereas a judge must make a revocation decision for people on probation.²⁴

Figure 3. Pathways after Felony Conviction

U.S. Census data: CSG Justice Center staff also obtained publicly available Census data.²⁵ Specifically, information on the number of American Indian and White Montana res­idents, ages 17 years and older, was obtained to calculate each group’s respective rates of incarceration, community supervision, and arrest (as reported in Figure 1 above).

Key measures and quantitative methods: To address analysis questions for this project, regression was employed to examine relevant outcomes—including incar­ceration sentencing and placement decisions (Analysis Questions 1a–b); length of stay (Analysis Question 2); and probation, conditional release, and parole revoca­tions (Analysis Questions 3a–b). Regression analysis is a common approach for comparing differences in out­comes between two groups, particularly when there is an interest in making an “apples to apples” comparison between those groups.

Regression analysis for each analysis question considered relevant case or contextual characteristics as well as indi­vidual characteristics, which CSG Justice Center staff con­structed using data obtained from MT DOC. Information on specific variables used for each set of analyses are summarized in Table 1 below and within each respective subsection of the Results. As with any analysis project, there were some factors that could not be accounted for due to limited data availability. For example, MT DOC’s data system does not have measures of the use of sanc­tions and rewards in community supervision that are ready for quantitative analysis.

Importantly, where applicable, CSG Justice Center staff used regression output to obtain adjusted relative rate indices. This process was used for all analyses involving a binary (dichotomous) outcome variable; binary outcomes included incarceration sentencing and placement decisions (Analysis Questions 1a–b) and probation, conditional release, and parole revocations (Analysis Questions 3a–b), but not length of stay (Analysis Question 2).

Table 1 below summarizes key details of the analytic approach, including information on research questions, outcomes examined, case counts, data sources, and analysis conducted.

Table 1. Summary of Analytic Approach and Results